COMMONWEALTH vs. JULIAN T. STONE.

NICK SAMPSON vs. TOWN OF HANOVER.

369 Mass. 957

October 30, 1975

The defendant town took by eminent domain a parcel of the plaintiff's land, and in 1972 the plaintiff sued for damages under G. L. c. 79, Section 14. In July, 1973, the town's motion to claim jury trial was allowed. Statute 1973, c. 983, Section 1, amended G. L. c. 79, Section 22, to provide for trial by a

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judge of the Superior Court sitting without a jury and for subsequent trial de novo before another judge sitting with a jury. Before trial in April, 1974, the judge expressed the opinion that the amendment would be applicable, and both parties signed and filed waivers of jury trial. After trial the town requested trial by jury de novo, pursuant to G. L. c. 79, Section 22. After hearing, on motion, the request was ordered struck, and the town's bill of exceptions was ordered treated as a notice of appeal under Mass. R. Civ. P. 1A, 365 Mass. 845 , effective July 1, 1974. The case was transferred to this court on our own motion under G. L. c. 211A, Section 10 (A). There was no error. The judge's order imports a finding that the town's waiver of jury trial was not limited to trial in the first instance. The order striking the town's request is affirmed, and judgment is to be entered on the judge's finding.

So ordered.